Cohen v. Mohr et al
Filing
121
ORDER granting 52 Motion for Summary Judgment; granting 69 Motion for Summary Judgment; denying 100 Motion for Default Judgment; denying 101 Motion for Default Judgment; adopting Report and Recommendations re 110 Report and Recommendations. Signed by Judge James L. Graham on 9/27/2016. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Justin D. Cohen,
Plaintiff,
v.
Case No. 2:15-cv-431
Gary Mohr, et al.,
Defendants.
ORDER
Plaintiff Justin D. Cohen, a former state prisoner, filed this
civil rights action pursuant to 42 U.S.C. §1983, against Gary C.
Mohr,
Director
Correction
of
the
(“ODRC”);
Ohio
Doctor
Department
Andrew
of
Eddy,
Rehabilitation
ODRC
Chief
and
Medical
Officer; Mick Oppy, former warden of the Correctional Reception
Center (“CRC”); Lisa Entler, former Healthcare Administrator for
the CRC; Michelle Miller, the warden at Belmont Correctional
Institution
(“BCI”);
Administrator
at
Brad
BCI;
Drs.
Eller,
Aaron
the
Samuels
former
and
Healthcare
Paul
Weidman,
physicians employed by ODRC who treat inmates at BCI; and Michelle
McNally, a nurse at BCI.
Plaintiff alleged in his complaint that
the defendants did not provide adequate treatment for his Crohn’s
disease and kidney stones, and delayed in obtaining his medical
records from his healthcare providers.
Plaintiff alleged that
these
unusual
failures
violation
of
Constitution.
resulted
the
in
Eighth
cruel
and
Amendment
of
the
punishment
United
in
States
The defendants filed motions for summary judgment
(Docs. 52 and 69).
This matter is now before the court for
consideration of plaintiff’s objections to the July 18, 2016,
report and recommendation of the magistrate judge which recommended
that the motions for summary judgment be granted.
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. §636(b)(1);
see also Fed. R. Civ. P. 72(b).
Upon review, the Court “may
accept, reject, or modify, in whole or in part, the findings or
recommendations
made
by
the
magistrate
judge.”
28
U.S.C.
§636(b)(1).
I. Summary Judgment Standards
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
The central issue is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
A
party asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of materials in
the record, by showing that the materials cited do not establish
the absence or presence of a genuine dispute, or by demonstrating
that an adverse party cannot produce admissible evidence to support
the fact.
Fed. R. Civ. P. 56(c)(1)(A) and (B).
In considering a
motion for summary judgment, this court must draw all reasonable
inferences and view all evidence in favor of the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Am. Express Travel Related Servs. Co. v. Kentucky,
641 F.3d 685, 688 (6th Cir. 2011).
2
The moving party has the burden of proving the absence of a
genuine dispute and its entitlement to summary judgment as a matter
of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party’s burden of showing the lack of a genuine dispute
can be discharged by showing that the nonmoving party has failed to
establish an essential element of his case, for which he bears the
ultimate burden of proof at trial.
Id.
Once the moving party
meets its initial burden, the nonmovant must set forth specific
facts showing that there is a genuine dispute for trial.
322 n. 3.
Id. at
“A dispute is ‘genuine’ only if based on evidence upon
which a reasonable jury could return a verdict in favor of the nonmoving party.”
Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298
(6th Cir. 2008).
The nonmoving party has an affirmative duty to
direct the court's attention to those specific portions of the
record upon which it seeks to rely to create a genuine issue of
material fact.
See Fed. R. Civ. P. 56(c)(3)(noting that the court
“need consider only the cited materials”).
II. Lack of Medical Treatment Claim
A. Supervisory Liability
The
magistrate
judge
correctly
noted
that
to
establish
liability under §1983, a plaintiff must plead and prove that a
defendant
is
personally
actions which injured him.
responsible
for
the
unconstitutional
Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 694 (1978); Grinter v. Knight, 532 F.3d 567,
575 (6th Cir. 2008).
To assert a constitutional claim against
individual government officials, “a plaintiff must plead that each
Government-Official
defendant,
through
the
official’s
own
individual actions, has violated the Constitution,” and cannot rely
3
on
a
theory
of
respondeat
superior
or
vicarious
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
defendant
denied
an
establish liability.
inmate’s
grievance
liability.
The mere fact that a
is
not
Grinter, 532 F.3d at 576.
sufficient
to
Likewise, §1983
liability cannot be based on mere knowledge or failure to act. Id.
To hold a supervisor liable under § 1983, plaintiff “must show that
the official at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct[.]”
Everson v. Leis,
556 F.3d 484, 495 (6th Cir. 2009).
The
magistrate
deposition,
concluded
judge,
that
citing
there
plaintiff’s
were
no
complaint
factual
and
allegations
indicating that defendants Mohr, Eddy, Miller, Eller, McNally, Oppy
and Entler were personally involved in the alleged denial of
medical care.
Rather, they were named as defendants due to their
supervisory roles with OCRC and the institutions where plaintiff
was confined, or due to their involvement in the grievance process.
This court agrees with the finding of the magistrate judge that
plaintiff does not allege facts indicating that these defendants
personally took any action in regard to his medical treatment, or
authorized, approved, or knowingly acquiesced in unconstitutional
conduct by other prison officials.
In his objections, plaintiff summarily alleges that these
defendants all had direct involvement with his medical care, and
that he was not suing them solely due to their supervisory roles.
However, he points to no evidence which would establish that any of
these seven defendants had any involvement in the decisions made
concerning his medical treatment at the institutions.
The court
agrees with the conclusion of the magistrate judge that no genuine
4
dispute of fact has been shown to exist in regard to the liability
of these defendants, and they are entitled to summary judgment on
plaintiff’s claim of inadequate medical care based on supervisory
liability.
B. Denial of Medical Care
To establish an Eighth Amendment violation based on the
failure to provide medical care, a prisoner must show that he has
a serious medical condition and that the defendants displayed a
deliberate indifference to his health. Farmer v. Brennan, 511 U.S.
825, 839 (1994); Wilson v. Seiter, 501 U.S. 294, 298 (1991)(inmate
must prove both an objective and subjective component: (1) a
sufficiently grave deprivation, such as serious medical needs; and
(2) a sufficiently culpable state of mind (wantonness)); Estelle v.
Gamble, 429 U.S. 97 (1976).
To be liable under the Eighth
Amendment, officials must know of and disregard an excessive risk
to inmate health or safety, must be aware of facts from which they
could conclude that a substantial risk exists and must actually
draw that conclusion.
Farmer, 511 U.S. at 844.
A complaint that
a prison doctor or official has been negligent with respect to
medical diagnosis or treatment does not state a valid claim under
the Eighth Amendment. Estelle, 429 U.S. at 106; Brooks v. Celeste,
39 F.3d 125, 127
(6th Cir. 1994).
Further, a prisoner does not
state a claim merely by pleading that he disagrees with the
diagnosis of prison medical personnel or the treatment provided by
the institution.
Estelle, 429 U.S. at 107-08; Westlake v. Lucas,
537 F.2d 857, 860 n. 5 (6th Cir. 1976).
The magistrate judge summarized plaintiff’s verified complaint
at length.
Doc. 110, pp. 2-5.
The complaint and record contain
5
multiple
allegations
and
staff
notes
concerning
plaintiff’s
treatment history at the institutions, including frequent treatment
visits to doctors and nurses, x-rays, blood work on at least four
occasions during a six-month period, and adjustments to plaintiff’s
treatment plan and prescribed medications.
Dr. Weidman stated in
his declaration, Doc. 52, Ex. A, that plaintiff was regularly
examined, monitored and treated as a patient of the institution’s
Chronic Care Clinic, and was regularly seen by medical staff as a
result
of
his
requests
for
additional
medical
appointments.
Plaintiff’s potassium, Vitamin D and hemoglobin levels were tested,
and he was given a diet of six small meals.
Doc. 91-12, p. 1.
Plaintiff’s chief complaint concerning the treatment of his
Crohn’s disease was that he was prescribed Mesalamine rather than
Entocort, which he had previously taken.
Dr. Weidman explained in
his declaration that Entocort is a cortico-steroid that is not
appropriate for long-term maintenance of Crohn’s disease, and that
the side effects of this drug include early cataract formation,
hyperglycemia,
adrenal
Weidman
a
noted
failure,
consult
and
report
by
avascular
Dr.
necrosis.
Steven
C.
Dr.
Dellon,
a
gastroenterologist, who also informed plaintiff that Entocort is
not a maintenance medication.
Although plaintiff complained of
nausea and diarrhea while he was on Mesalamine, he also had similar
problems while on Entocort, as indicated by the treatment notes of
his
primary
care
physician,
Dr.
Annette
Chavez.
Eric
Lyle
Declaration, Doc. 52, Ex. B, p. 3.
As to plaintiff’s kidney stones, Dr. Weidman stated in his
declaration that kidney stones generally do not become a problem
until they drop into the ureter.
Dr. Weidman indicated that while
6
at the institution, plaintiff had kidney stones in his kidney that
were not symptomatic and which did not call for surgery or other
aggressive procedures.
Plaintiff complained that he was not given
a restricted diet appropriate to his kidney stone condition,
specifically complaining that he was given peanut butter snacks.
However, defendants cited to plaintiff’s deposition testimony that
he did not eat the peanut butter snacks, and also presented
evidence of plaintiff’s commissary purchases, which frequently
included foods not compatible with his kidney stone diet.
The magistrate judge correctly concluded that no reasonable
jury could conclude that the defendants acted with deliberate
indifference in treating plaintiff’s medical conditions.
This is
a case where plaintiff received regular medical treatment.
He
simply disagreed with some of the treatment which was provided.
The magistrate judge did not err in stating that a difference of
opinion between a prisoner and the prison health care providers
does
not
amount
to
an
Eighth
Amendment
claim.
Mitchell
v.
Hininger, 553 F.App’x 602, 605 (6th Cir. 2014)(“a desire for
additional or different treatment does not suffice by itself to
support an Eight Amendment claim”); see also Rhinehart v. Scutt,
509 F.App’x 510, 513 (6th Cir. 2013)(neither negligence alone, nor
a disagreement over the wisdom or correctness of a medical judgment
is sufficient to allege a deliberate indifference claim); Kirkham
v. Wilkinson, 101 F.App’x 628, 630 (6th Cir. 2004)(“This court is
reluctant to second-guess medical judgments where a prisoner has
received some medical attention and the dispute concerns the
adequacy of that treatment.”).
In his objections, plaintiff argues that his condition in the
7
institution was worsening and that the physicians should have given
him Entocort. He notes records where he complained of weight loss.
However, defendants noted plaintiff’s deposition testimony, where
he stated that his weight fluctuated by ten to fifteen pounds, and
that he had lost ten pounds prior to being incarcerated.
He
contests the magistrate judge’s observation that even according to
plaintiff’s complaint, he did not always take the medication
prescribed to him or follow the recommended treatment plans.
Plaintiff cites one treatment note stating that he was compliant
with taking medications.
However, in his answer to plaintiff’s
interrogatories (Doc. 66), Dr. Weidman stated that plaintiff did
not have a favorable record of compliance with medications, that
plaintiff reported that he was not taking his Crohn’s medication as
prescribed, and that plaintiff’s complaints that the medication was
not working were “more a statement of compliance rather than
efficacy.”
Doc. 66-1, Answers 2, 6 and 10.
Dr. Samuels also
stated in his answer to plaintiff’s interrogatories that plaintiff
did not take his prescription for Crohn’s and Biaxin as ordered.
Doc. 66-1, Answers 11 and 21.
Even the allegations in plaintiff’s
complaint state that he refused to take antibiotics which were
prescribed for a sinus infection.
Plaintiff also filed unauthenticated medical records with his
objections which relate to his treatment for kidney stones with
surgery after his release from the institution in 2016.
Plaintiff
may not offer, for the first time in an objection, evidence which
was never presented to or considered by the magistrate judge. Murr
v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000).
In any
event, those records do not establish that plaintiff’s kidney
8
stones
would
have
required
surgery
during
the
time
he
was
incarcerated.
The court finds that no genuine dispute has been demonstrated
in regard to plaintiff’s Eighth Amendment claim based on an alleged
lack of proper medical treatment, and that defendants are entitled
to
summary
judgment
on
that
claim.
Further,
since
no
constitutional violation occurred, defendants are entitled to
qualified immunity on this claim.
Miller v. Sanilac County, 606
F.3d 240, 247 (6th Cir. 2010).
III. Failure to Timely Procure Plaintiff’s Medical Records
In determining whether a prison’s failure to timely treat a
condition adequately violated the Eighth Amendment, “medical proof
is necessary to assess whether the delay caused a serious medical
injury.”
Blackmore v. Kalamazoo County, 390 F.3d 890, 898 (6th
Cir. 2004); see also Napier v. Madison County, Ky., 238 F.3d 739,
742
(6th
Cir.
2001)(an
inmate
claiming
an
Eighth
Amendment
violation based on the failure to provide timely medical care must
place verifying evidence inthe record to establish the detrimental
effect of the delay in treatment).
The only allegations in
plaintiff’s complaint concerning the failure to timely procure his
prior medical records were addressed at defendants Entler and
McNally.
Plaintiff alleges in his verified complaint that he arrived at
CRC on March 15, 2014, that he received Azacort on March 17, 2014,
and that he was given Mesalamine on March 18, 2014.
The record
shows that the medical staff promptly treated plaintiff’s medical
conditions upon his arrival at CRC even before receiving his
records.
However, plaintiff alleges that defendants would have
9
treated him differently and more efficaciously and given him
Entocort if there had been no delay in receiving his medical
history.
The magistrate judge correctly noted that there is no evidence
that defendants would have treated plaintiff any differently if
they had received his medical records sooner, and that this claim
was simply a restatement of plaintiff’s disagreement with the
medications which were provided.
The evidence shows that even
after receiving plaintiff’s medical records in May, 2014, Dr.
Weidman continued to treat plaintiff with Mesalamine rather than
Entocort
for
the
reasons
he
gave
in
his
declaration.
The
magistrate judge further stated that plaintiff failed to present
medical proof that any delay in obtaining his records caused him
serious medical injury.
In his objections, plaintiff points to no
evidence which would establish that the magistrate judge’s findings
were erroneous.
Plaintiff has offered no evidence sufficient to
raise a genuine dispute of fact as to whether defendants violated
his Eighth Amendment rights due to a delay in obtaining his medical
records. The court concludes that defendants are entitled to
summary judgment on this claim.
IV. Conclusion
Having reviewed the report and recommendation and plaintiff’s
objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b),
the court finds that plaintiff’s objections are without merit. The
court overrules plaintiff’s objections and adopts the magistrate
judge’s report and recommendation (Doc. 110).
The motions for
summary judgment (Docs. 52 and 69) are granted.
As defendants did
timely appear and defend this action, plaintiff’s motion for
10
default judgment (Doc. 100) and supplemental motion for default
judgment (Doc. 101) are denied.
The clerk shall enter judgment in
favor of the defendants.
Date: September 27, 2016
s/James L. Graham
James L. Graham
United States District Judge
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